The Florida State Bar recently adopted an advisory opinion meant to provide attorneys with guidance on how to use generative artificial intelligence (“GenAI”) without running afoul of ethics rules. In doing so, Florida becomes one of the first state bars to issue formal guidance on this topic—second only to California.
While recognizing the potential to revolutionize certain aspects of the practice of law, the guidelines focus on compliance with existing ethical obligations when faced with the unique issues that may arise in connection with GenAI.
For example, attorneys must be able to understand the technology at a fundamental level to ensure they are appropriately safeguarding information input into GenAI models and complying with their duty of confidentiality. For example, this includes determining whether the GenAI program is “self-learning.” That is, whether the tool continues to develop its responses as it receives additional inputs and adds those inputs to its existing parameters. If those inputs include confidential information, the confidentiality may be lost. Additionally, the advisory opinion notes that confidentiality concerns may be mitigated by use of an in-house GenAI tool rather than an outside tool where the data is hosted and stored by a third-party. It further notes that if the use of a GenAI program does not involve the disclosure of confidential information to a third-party, a lawyer is not required to obtain a client’s informed consent pursuant to the applicable rule.
Similarly, an attorney’s “supervisory” duties are implicated by the requirement that they oversee and review output of a GenAI tool, just as they would review work of a non-lawyer. The advisory opinion indicates that a lawyer must review the work product of GenAI in situations similar to those requiring review of the work of nonlawyer assistants such as paralegals. Lawyers are ultimately responsible for the work product that they create regardless of whether that work product was originally drafted or researched by a nonlawyer or GenAI. Among other things, this means that lawyers must verify the accuracy and sufficiency of all research performed by GenAI.
The opinion further indicates that these duties apply to nonlawyers both within and outside of the law firm. If GenAI is managed and operated by a third-party, this does not obviate the need to ensure that its actions are consistent with the lawyer’s own professional and ethical obligations. This includes an obligation for a lawyer to carefully consider what functions may ethically be delegated to GenAI. For example, a lawyer may not delegate to GenAI any act that could constitute the practice of law, such as the negotiation of claims or any other function that requires a lawyer’s personal judgment and participation.
The advisory opinion further addresses AI issues with the lawyer-client relationship, which traditionally depends on the subjective reasonable belief of the client regardless of the lawyer’s intent. The opinion indicates that a lawyer should be careful about using GenAI chatbots that may provide legal advice, particularly if they fail to immediately identify itself as a chatbot, or fail to include clear and reasonably understandable disclaimers limiting the lawyer’s obligations. Additionally, it cautions that a lawyer should not instruct or encourage a client to rely solely on the work product of GenAI, such as due diligence reports, without the lawyer’s own personal review of that work product.
Legal Fees and Costs
The advisory opinion also warns of the potential for attorneys to charge illegal or excessive fees when use of a GenAI tool increases efficiency. It indicates that a lawyer may not ethically engage in any billing practices that duplicate charges or that falsely inflate the lawyer’s billable hours. While recognizing that GenAI programs may make a lawyer’s work more efficient, it cautions that this increase in efficiency must not result in falsely inflated claims of time. It does suggest that lawyers may adopt contingent fee arrangements or flat billing rates for specific services so that the benefits of increased efficiency accrue to the lawyer and client alike.
Other aspects of the opinion state that it is advisable for a lawyer to inform a client, preferably in writing, of the lawyer’s intent to charge a client the actual cost of using GenAI and reminds lawyers that the charges are reasonable and are not duplicative. If a lawyer is unable to determine the actual cost associated with a particular client’s matter, the lawyer may not ethically prorate the periodic charges of the GenAI, and instead should account for those charges as overhead.
It further notes that a lawyer may charge a client for the reasonable time spent for case-specific research and drafting when using GenAI, but should not charge for the time spent developing competence in the use of generative AI.
The last topic addressed relates to attorney advertising. The opinion makes clear that lawyers need to avoid misleading content and unduly manipulative or intrusive advertisements. As an example, it notes that a lawyer should be careful when using a GenAI chatbot for advertising and intake purposes to ensure the chatbot does not provide misleading information to prospective clients or communicate in a manner that is inappropriately intrusive or coercive. It notes that to avoid confusion or deception, a lawyer must inform prospective clients that they are communicating with an AI program, and not with a lawyer or law firm employee.
Other points made include:
- A Lawyer should consider including screening questions that limit the chatbot’s communications if a person is already represented by another lawyer.
- Lawyers may not claim their GenAI is superior to those used by other lawyers or law firms unless the lawyer’s claims are objectively verifiable, which is a factual question that must be made on a case-by-case basis.
Putting it into practice: Lawyers should familiarize themselves with the implications of using generative AI so that they can spot potential ethical issues when engaging with this technology. While this advisory opinion and those adopted or considered in other states are helpful as a starting point, organizations should also develop and maintain an organization-specific GenAI policy, which covers acceptable use of particular GenAI tools. These policies are not a one and done task. The opinion concludes with some important caveats, including that these ethical concerns should not be treated as an exhaustive list and that lawyers should continue to develop competency in their use of new technologies and the risks and benefits inherent in those technologies.
For more information on ethical considerations with lawyers use of AI, please see Ethical Issues with Generative AI and Ethical Considerations for Lawyers Using Generative AI in Delivering Legal Services.